In a recent case heard in the Court of Appeal of New South Wales, Mrs Fischer engaged a solicitor to prepare a new Will. The solicitor took instructions at Mrs Fischer’s home and they agreed to meet again in two weeks (after Easter) after the Will had been drafted to have it executed. Unfortunately Mrs Fischer passed away before the second meeting could take place.
Mrs Fischer’s son and grand-daughter claimed the Solicitor’s failure to have Mrs Fischer sign her Will instructions, so this could be admitted as an informal Will, meant they were consequently not entitled to inherit the increased sum proposed under the terms of the draft Will.
The Court found:
Duty of care of a solicitor:
- When engaged to draft a Will for a client a solicitor has a duty to take reasonable steps to achieve two things:
- The fulfilment of the client’s objective of making a formal Will according to the agreed time frame; and
- The avoidance of any reasonably foreseeable frustration of that object.
Breach of the duty by the solicitor:
- The solicitor did not breach the duty to make the formal Will according to the agreed time frame as:
- The two week time frame was at Mrs Fischer’s own request as she desired her son amongst others to be present when she signed the Will; and
- Mrs Fischer had made formal Wills on at least nine prior occasions making her familiar with a solicitor’s generally accepted procedure to take instructions and arrange for execution of the Will at a later time.
- The solicitor did not breach this duty by failing to have the Will instructions signed as it was not reasonably foreseeable that the client’s retainer to have the formal Will signed would be frustrated by Mrs Fischer’s death given that:
- Mrs Fischer did not have settled testamentary intentions at the time of providing the instructions; and
- Although Mrs Fischer was 94, she could sustain a 90 minute conversation without a break, she was well dressed and presented and no concerns as to her present health were raised. Therefore the solicitor could not have been aware of Mrs Fischer’s imminent death or a potential for her to lose capacity before the next meeting.
The Court concluded that the solicitor did owe Mrs Fischer’s son as an intended beneficiary a duty of care to ensure that he received the intended property. However, the solicitor did not breach this duty and the son was not entitled to compensation.
If you are concerned about your current Will or your entitlement under a deceased estate, please do not hesitate to contact McLaughlins Lawyers for professional advice as to your legal position.